State v. Kelley, 940 N.W.2d 568

In Aug. 2018, William T. Kelley was charged with first- and third-degree sexual assault of a child (victim T.K.) for alleged conduct in 2007–2008.
Kelley filed a plea in bar, claiming a 2009 plea agreement in separate cases included a promise by the State not to prosecute him for assaults on T.K.
The written 2009 plea agreement contained no no-prosecution promise and included an integration clause stating it contained all promises.
At a hearing, Kelley’s prior counsel testified the no-prosecution promise was made but accidentally omitted; the prior prosecutor denied any such promise.
The district court overruled the plea in bar; Kelley appealed and also raised an ineffective-assistance claim about prior counsel’s omission.
The Supreme Court considered whether it had jurisdiction to hear the appeal (i.e., whether the order overruling the plea in bar was a final, appealable order based on a colorable double jeopardy claim).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether overruling a plea in bar asserting the State promised not to prosecute for assaults on T.K. is a final, appealable order because it raises double jeopardy	Kelley: The 2009 plea agreement included a promise not to prosecute; bringing these charges violates Double Jeopardy	State: No colorable double jeopardy claim — written plea has no such promise, prosecutor denies it, and Kelley was never previously acquitted, convicted, or placed in jeopardy for these offenses	Court: Kelley did not present a colorable double jeopardy claim; overruling the plea in bar is not a final, appealable order; appeal dismissed for lack of jurisdiction
Whether Kelley’s claim of ineffective assistance by prior counsel (failing to include the no-prosecution term) changes jurisdictional analysis	Kelley: Prior counsel was ineffective for omitting the promise, rendering the plea agreement defective	State: Even if omission occurred, no double jeopardy violation exists and plea in bar is not the proper vehicle here	Court: Did not decide ineffective-assistance merits; noted remedies for breached pleas exist but declined to reach them because no colorable double jeopardy claim was presented

Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287 (standard for de novo review of jurisdictional legal questions)
Green v. Seiffert, 304 Neb. 212 (appellate duty to determine jurisdiction before merits)
State v. Paulsen, 304 Neb. 21 (in criminal cases the judgment from which an appeal lies is the sentence)
State v. Williams, 278 Neb. 841 (plea in bar is a special proceeding; overruling a nonfrivolous double jeopardy claim affects a substantial right)
State v. Huff, 279 Neb. 68 (example of appellate jurisdiction where plea in bar raised a colorable double jeopardy claim)
State v. Manjikian, 303 Neb. 100 (explaining when jeopardy attaches)
State v. Smith, 295 Neb. 957 (remedies available when the State breaches a plea agreement)